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Terms of service
1. Legal agreement AnalyticApproach.com and its affiliates provide web-based email marketing software and associated services (collectively, the "AnalyticApproach.com Services"). These AnalyticApproach.com Terms of Service, along with Your Pricing Plan Sign Up Form comprise a legal agreement ("Agreement") between You and AnalyticApproach.com and govern Your use of AnalyticApproach.com Services. BY ORDERING OR MAKING USE OF THE ANALYTICAPPROACH.COM SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE, AS MODIFIED FROM TIME TO TIME. "You" means You, Your Company, Your employees, and anyone who has access to use Your AnalyticApproach.com account. You must be at least eighteen (18) years of age to subscribe to and use any AnalyticApproach.com Service. "Pricing Plan Sign Up Form" means the ordering documents representing the initial purchase of the AnalyticApproach.com Services as well as any subsequent purchases agreed to between the parties in writing form time to time. 2. Services AnalyticApproach.com shall make the AnalyticApproach.com Services available to You pursuant to the terms and conditions set forth in this Agreement. During the term of this Agreement, (i) the AnalyticApproach.com Services shall perform materially in accordance with the associated documentation, and (ii) the functionality of the AnalyticApproach.com Service will not be materially decreased from that available as of the Effective Date. You agree that your purchase of services is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by AnalyticApproach.com with respect to future functionality or features. You acknowledge that AnalyticApproach.com is the sole owner of all intellectual property rights in and to the Software and all web sites provided by AnalyticApproach.com in connection with the AnalyticApproach.com Services (the "Sites"), including but not limited to the structure, organization, design, algorithms, methods, templates, data models, data structures, logic flow, and screen displays associated therewith. All customizations, enhancements, modifications and new code made available to You pursuant to this Agreement shall be deemed "Software" hereunder and shall be owned by AnalyticApproach.com. Except as expressly authorized in this Agreement, You will not copy, modify, display, rent or unbundle the Software. In addition, You will not reverse engineer, decompile or disassemble the Software, and will not otherwise attempt to reconstruct or discover the source code for the Software. The Software and the Sites shall be used only by You for Your sole and exclusive benefit, and shall not be used to provide time-sharing or other similar services for the benefit of any third party. AnalyticApproach.com reserves all rights in the Licensed Product not expressly granted to You hereunder. 3. Rights granted to analyticapproach.com You allow AnalyticApproach.com to reference our relationship on a listing of AnalyticApproach.com customers. AnalyticApproach.com may also request the right to use your logo and/or trademark on AnalyticApproach.com's website or in certain marketing material. AnalyticApproach.com agrees to obtain permission from You prior to using your logo and/or trademark. AnalyticApproach.com may include in every e-mail sent by any AnalyticApproach.com Service a statement similar to the following: "Delivered by AnalyticApproach.com". 4. Fees You agree to pay the fees for AnalyticApproach.com Services in the amount and frequency as set forth in the applicable Pricing Plan Sign Up Form. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of Your AnalyticApproach.com account by You or anyone else using Your account. AnalyticApproach.com reserves the right to modify the fees charged for AnalyticApproach.com Services from time to time, provided that such new fees shall not take effect until the next renewal of AnalyticApproach.com Services. 5. Term, termination, and changes to service The Pricing Plan of this Agreement shall be as selected by You on the Pricing Plan Sign Up Form. There are no term commitments. Should you decide to cancel your service, it will be cancelled on the last day of your paid monthly billing cycle. Except as is set forth in Section 5 of this agreement, all payments made to AnalyticApproach.com are non-refundable. Furthermore, You are obligated to make all payments set forth in your Pricing Plan. The only exception for refunds applies to customers who have sent less than 100 emails and are within their first billing cycle. This is subject to billing management approval. AnalyticApproach.com may terminate or suspend this Agreement with immediate effect if, in AnalyticApproach.com's sole judgment, You breach any of the terms and conditions of this Agreement. All provisions of this Agreement relating to payment; disclaimers; limitation of liability; confidentiality; and AnalyticApproach.com's proprietary rights shall survive termination or expiration of this Agreement. AnalyticApproach.com may change any of the AnalyticApproach.com Services at any time and from time to time without notice. In the event that AnalyticApproach.com were to terminate the service altogether, AnalyticApproach.com will provide You with a pro-rata refund of any pre-paid fees associated with such AnalyticApproach.com Service. 6. Warranties By subscribing to or receiving any AnalyticApproach.com Service, You make the following representations and warranties. AnalyticApproach.com shall have the right to terminate your AnalyticApproach.com account, without notice at any time, if any representation or warranty made by You proves to be untrue in any respect. You represent and warrant that: - You and all users of the AnalyticApproach.com Service approved by you are at least eighteen (18) years of age; - You have the legal capacity and authority to: (a) enter into binding contracts for the sale and purchase of goods and services, (b) be bound by these Terms of Service, (c) subscribe to and use the AnalyticApproach.com Service, including, where applicable, the buying, selling and listing of items, in accordance with these Terms of Service, and (d) if you are acting in a corporate capacity, bind Your company; - You will not use the AnalyticApproach.com Service for any purpose that is unlawful, or prohibited by these Terms of Service (as may be modified from time to time); - All information and content supplied by You or by others using any AnalyticApproach.com Service, including but not limited to all information submitted as part of the registration and subscription process and all content included in e-mails delivered by you via any AnalyticApproach.com Service (collectively, "Customer Content"), is true and accurate; - Any products or services advertised, sold or otherwise distributed by You on or in connection with any Customer Content are legal for sale or distribution; that you have all licenses necessary to sell or advertise the goods or services offered for sale or distribution and that all sales and advertisements will be in compliance with applicable law; - You own or have the right to use all of the intellectual property, proprietary and similar rights necessary for all Customer Content, and all products and services sold or otherwise distributed by You or on Your behalf that are referred to in the Customer Content; Your delivery of emails in connection with any AnalyticApproach.com Services is in full compliance with the CAN-SPAM Act of 2003; and - You have secured required permission to use any person's name, voice, likeness or performance as embodied in any Customer Content, and nothing in the Customer Content will otherwise infringe on the privacy or publicity right of any individual. 7. Links to third party sites Links within the AnalyticApproach.com service may let You leave the AnalyticApproach.com site. You acknowledge that the linked sites are not under the control of AnalyticApproach.com and that AnalyticApproach.com is not responsible for the contents or operation of such linked sites or any link contained in such linked site, any changes or updates to such sites, or any form of transmission received from any linked site. AnalyticApproach.com is providing these links to You only as a convenience, and the inclusion of any link does not imply endorsement by AnalyticApproach.com of the linked site or any association with their operators. 8. Limitations of liability and disclaimers The information, software, products, services and other material included in or available through AnalyticApproach.com Services may not be complete, and may include inaccuracies or errors, and may also be modified, discontinued or deleted from time to time without notice. Advice, information, products, services or other materials received via AnalyticApproach.com Services should not be relied upon for personal, medical, legal, business, financial or other decisions and is not intended to replace the advice of appropriate and qualified professionals. AnalyticApproach.com warrants that it will use commercially reasonable efforts to provide the ordered AnalyticApproach.com Services in accordance with the terms and conditions in the applicable order form. Otherwise, AnalyticApproach.com makes no guarantees of any kind regarding the dependability, accuracy, security, timeliness or availability of the AnalyticApproach.com Services. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, ALL ANALYTICAPPROACH.COM SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND ANALYTICAPPROACH.COM AND ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE ANALYTICAPPROACH.COM SERVICES, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN NO EVENT SHALL ANALYTICAPPROACH.COM OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF ANALYTICAPPROACH.COM OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN ADDITION, ANALYTICAPPROACH.COM OR ITS SUPPLIERS SHALL NOT BE LIABLE FOR: - DAMAGES FOR LOSS OF USE, DATA, ACCOUNTS, REVENUES OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF ANALYTICAPPROACH.COM SERVICES, OR - WITH THE DELAY OR INABILITY TO USE ANALYTICAPPROACH.COM SERVICES; IF YOU ARE DISSATISFIED WITH ANY PORTION OF ANALYTICAPPROACH.COM SERVICES, OR WITH ANY OF THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING ANALYTICAPPROACH.COM SERVICES. Without limiting the foregoing, AnalyticApproach.com is not responsible for any of Your data residing on AnalyticApproach.com hardware or systems, including such hardware or systems provided to AnalyticApproach.com by third parties. You are responsible for maintaining and backing-up Your data and information that may reside on AnalyticApproach.com hardware or systems, including such hardware or systems provided to AnalyticApproach.com by third parties, whether or not such information is produced through the use of AnalyticApproach.com, including all Customer Content. AnalyticApproach.com is not liable for Your actions with Your customers or vendors, or the use of their information, or for any other actions arising from Your use, or the use of other parties to whom You have given access to Your AnalyticApproach.com information, through the use of AnalyticApproach.com Services. AnalyticApproach.com is not involved in any transaction between You and Your buyer or seller or other third parties with whom you may have transactions through Your web site or between You and any user of any products or services offered or provided by You or by a third party through any AnalyticApproach.com Service. AnalyticApproach.com is not responsible for screening, censoring or otherwise controlling your Customer Content, or any listings or transactions offered or conducted via your Customer Content. You are deemed to have a direct commercial relationship with each third party that purchases goods or services from or undertakes any other transaction with You. AnalyticApproach.com is not acting as Your or any third party's agent in connection with the operation of AnalyticApproach.com Services. Further, because AnalyticApproach.com is not involved in any orders or other transactions between You and other users of AnalyticApproach.com or other marketplace forums, AnalyticApproach.com cannot and will not be involved in resolving any disputes relating to any completed or uncompleted transactions or the purchase or sale of listed goods or otherwise. 9. Indemnity You agree to defend, indemnify and hold AnalyticApproach.com and its suppliers harmless from and against any and all claims, losses, liability costs and expenses (including but not limited to attorney's fees) arising from Your violation of these Terms of Service, or any third-party's rights, (including, without limitation, infringement of any copyright, violation of any proprietary right and invasion of any privacy rights). These obligations will survive any termination of Your relationship with AnalyticApproach.com or Your use of AnalyticApproach.com Services. 10. Privacy; your customer data AnalyticApproach.com will not use Your customer data or Your customer contact list for any purposes other than those intended by the AnalyticApproach.com Service. Your customer information will not be shared with any other parties, unless you are also subscribing to a AnalyticApproach.com Service where one of the features of such service is the sharing of customer information between services. AnalyticApproach.com will not use Your customer information for the purpose of sending unsolicited commercial e-mail to such customers. AnalyticApproach.com's complete privacy policy is located on the AnalyticApproach.com Web site, here: http://analyticapproach.com/privacy_policy.html. 11. General These Terms of Service are governed by the laws of the State of California, U.S.A. You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in Sacramento County, California, U.S.A. in all disputes arising out of or relating to the use of the AnalyticApproach.com Services. You agree that no joint venture, partnership, employment, or agency relationship exists between You and AnalyticApproach.com as a result of these Terms or Service or use of AnalyticApproach.com Services. AnalyticApproach.com's performance of this Agreement is subject to existing laws and legal process, and nothing contained in these Terms of Service are in derogation of AnalyticApproach.com's right to comply with governmental, court and law enforcement requests or requirements relating to Your use of AnalyticApproach.com Services or information provided to or gathered by AnalyticApproach.com with respect to such use. If any part of these Terms of Service is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Service shall continue in effect. Unless otherwise specified herein, these Terms of Service, the Anti-Spam Policy and the Privacy Statement constitute the entire Agreement between the user and AnalyticApproach.com with respect to AnalyticApproach.com Services and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and AnalyticApproach.com with respect to AnalyticApproach.com Services. AnalyticApproach.com reserves the right to disclose any information, content, or materials as necessary to satisfy any applicable law, regulation, legal process or government request or in accordance with AnalyticApproach.com's Privacy Statement. Any rights not expressly granted herein are reserved by AnalyticApproach.com, including all legal and equitable remedies available to AnalyticApproach.com upon Your violation of any of these Terms of Service. 12. Trademarks AnalyticApproach.com is a registered trademark of AnalyticApproach.com Software, Inc. and should not be used without written permission. The names of actual companies and products mentioned herein or on the AnalyticApproach.com web site may be the trademarks or service marks of their respective owners. 13. Use restrictions and anti-spam policy AnalyticApproach.com's Anti Spam policy is located on the AnalyticApproach.com website at; http://analyticapproach.com/anti_spam_policy.html LIMITATIONS ON YOUR USE OF ANALYTICAPPROACH.COM SERVICES AnalyticApproach.com Services are provided to assist You with the operation of Your business. Your right to use the AnalyticApproach.com Service is limited to You, Your company and its employees. You are solely responsible for Customer Content and all use of Your AnalyticApproach.com account. AnalyticApproach.com reserves the right, but is not obligated, to monitor or to review Customer Content and to monitor your compliance with these Terms of Service. AnalyticApproach.com reserves the right in its sole discretion to: (a) refuse to provide AnalyticApproach.com Services if You violate these Terms of Service, and/or (b) edit, refuse to post, or remove any Customer Content that violates the Terms of Service, without notice at any time. You may not: (a) restrict or inhibit any other user from using and enjoying such user's rights in AnalyticApproach.com Services, or (b) interfere with or disrupt our AnalyticApproach.com Servers or servers or any network connected to AnalyticApproach.com Services. In addition, You may not use the AnalyticApproach.com Services to: - send unsolicited bulk email, for commercial or non-commercial purposes. Unsolicited bulk email is defined as email sent to more than 10 individuals without their permission; - rent, lease, license, grant a security interest in, or otherwise transfer or sublicense Your rights hereunder to any third party; - defame, libel, slander, impersonate, abuse, harass, threaten, invade the privacy of or otherwise violate or infringe the legal rights (including the rights of privacy and publicity) of any other person; - conduct, promote or forward illegal contests, pyramid schemes, chain letters, unsolicited or unauthorized advertising, promotional materials, or multi-level or illegal marketing campaigns; - harm minors in any way; - publish, post, distribute, disseminate, advertise or link to any: (i) content, site, topic, name, material or information which is inappropriate, profane, defamatory, libelous, slanderous, infringing, obscene, indecent, or which contains nudity or adult content; (ii) software, content or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity, or other proprietary rights, unless You own or control such rights or have received all necessary consents for Your publication, distribution, or linking of such software and other materials; (iii) software, content or other material that contains viruses, worms, corrupted files, cracks or that may or are intended to damage the operation of or render inoperable another's computer, hardware, software, security measures or system or other programs written to defeat the security measures of any computer, system or programs; (iv) software, content, other material or Web site that constitutes "hate speech", whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation or language of such individual or group; - sell, offer to sell, distribute, promote, facilitate, disseminate or link to any sites for marketing, sales, promotion, facilitation or distribution of: firearms; explosives; ammunition; liquor; tobacco products; illegal gambling (including gambling in connection with sporting events); food that is not packaged or does not comply with all applicable laws for sale to consumers by commercial merchants; illicit drugs, pharmaceuticals and controlled substances; counterfeit, pirated or stolen goods; any goods or services that infringe or otherwise violate a third party's rights including copyright, patent, trademark, or rights of publicity or privacy; goods that are considered indecent, obscene or pornographic; Nazi memorabilia; registered or unregistered securities; goods or services that You cannot legally sell; goods which are misrepresented or which do not in fact exist; fraudulent goods; or any other illegal activity; - harvest or otherwise collect information about third parties, including e-mail addresses, without the express consent of such third parties; - violate any applicable government laws or regulations. E-MAIL CAMPAIGNS: AnalyticApproach.com Services may only be used in connection with e-mail lists for which recipients have voluntarily registered. Using AnalyticApproach.com to send e-mail to an address You obtain without the consent of such addressee is a violation of the AnalyticApproach.com Terms of Service. You may not access the mailing lists of third parties on AnalyticApproach.com Services, and You may not access or otherwise use such third party mailing lists in connection with preparing or distributing unsolicited e-mail to any third party. You may not import any e-mail addresses to Your list that have not chosen to receive Your mailings. You may only send e-mail to customers that have willingly signed up to receive Your mailings. If AnalyticApproach.com receives complaints about Your list, Your list will be reviewed and may be terminated. You may not send mail under any company or organization name other than Your own and/or with fraudulent header or source information. Please see AnalyticApproach.com's Anti-Spam policy for further information and restrictions regarding use of AnalyticApproach.com Services. If You use AnalyticApproach.com to create a mailing list (a "Mailing List"), You may remove any e-mail address contained therein from such Mailing List at Your discretion. You agree to honor the request of the owner of any e-mail address to remove that address from a Mailing List within ten (10) business days after receipt of such request. You may establish additional terms and conditions that may be applied to persons subscribed to Your Mailing Lists. If You register with a Mailing List, You acknowledge that the owner of the mailing list may remove Your e-mail address from such Mailing List, in its discretion and at any time, and that Your participation in such Mailing List may be subject to additional terms and conditions that may be changed from time to time. ACCESS RESTRICTION; ACCOUNT SECURITY AND PASSWORDS You may not use a name in connection with operating Your AnalyticApproach.com account that is confusing or misleading to participants, or otherwise impersonate or deceive participants with respect to Your identity. You are responsible for safeguarding the confidentiality of Your account information (including password(s) and user name(s) issued to You) and for any use or misuse of Your account or AnalyticApproach.com Services resulting from any third party using a password or user name issued to You. You agree to notify AnalyticApproach.com immediately of any known or suspected unauthorized access to or use of Your account, Your password, the password of any individual user to whom You have issued a login ID or any other breach of security or misuse of the AnalyticApproach.com known to or suspected by You. You may change Your password at any time by following instructions on the AnalyticApproach.com web site. You hereby authorize AnalyticApproach.com to rely on any data, notice, instruction or request furnished by You to AnalyticApproach.com, or that AnalyticApproach.com reasonably believes to have been furnished by You. You are solely responsible for maintaining the confidentiality of Your account information and monitoring usage of Your account. AnalyticApproach.com is not responsible for fraud of participants or of other users of your account.
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